INGE PRYTZ JOHNSON, District Judge.
This action seeks habeas corpus relief with respect to Petitioner Geoffrey Todd West's ("West" or "Petitioner") state court conviction and death sentence on a charge of capital murder. See 28 U.S.C. § 2254 (2006). All of the claims have been briefed to the Court, and the petition is ready for adjudication.
The following summary of the evidence relevant to the offense is taken from the Alabama Court of Criminal Appeals' opinion on direct appeal. West v. State, 793 So.2d 870, 873 (Ala.Crim.App.2000). To the extent the appellate court relies upon the trial court's findings of fact, these findings are taken directly from the trial court's sentencing order, which the trial judge entitled "Judgment of the Court." (C.R. Vol. 21, Tab. 62, p. 1).
In its sentencing order, the trial court summarized the relevant facts of this case as follows:
West v. State, 793 So.2d 870, 873 (Ala. Crim.App.2000) (quoting C.R. Vol. 21, Tab. 62, p. 1); (see also Rule 32 C.R. Vol. 21, Tab. 73, p. 2 (same)).
After the formal sentencing hearing, the trial court found the existence of two statutory aggravating circumstances and two statutory mitigating circumstances.
(C.R. Vol. 21, Tab. 64, pp. 1-2). In regards to the statutory mitigating factors, the trial court found:
Id. at 2. "After considering all findings as listed above" as well as "the aspects of Defendant's character and record presented
At 2:35 p.m. on June 1, 1999, West was found guilty of capital murder during the course of a robbery in violation of Alabama Code § 13A-5-40(a)(2) (1975). (See R. Vol. 11, Tab. 19, pp. 1771-72). A penalty hearing immediately followed, and, at 5:03 p.m. that same day, the jury recommended that West be sentenced to death by a vote of 10-2. (See R. Vol. 12, Tab. 27, pp. 1802-03). A formal sentencing hearing, as required by Alabama Code § 13 A. -5-47, was conducted on July 7, 1999, and the trial court judge followed the recommendation of the jury and sentenced West to death. (See R. Vol. 12, Tab. 29, p. 1813). An automatic appeal followed.
West appealed his conviction and sentence to the Alabama Court of Criminal Appeals who entered a published opinion "affirm[ing West's] conviction, but remand[ing] the case to the trial court with instructions that the trial court enter a new sentencing order that complies with the requirements of § 13A-5-47(d), Ala. Code 1975" on June 30, 2000.
West thereafter filed a petition for relief from judgment pursuant to Rule 32 of the Alabama Rules of Criminal Procedure on September 6, 2002. (Rule 32 C.R. Vol. 16, Tab. 40). On October 21, 2002, the State filed a Motion to Dismiss arguing that West's Rule 32 petition was barred by the statute of limitations set forth in Rule 32.2(c) of the Alabama Rules of Criminal Procedure. (Rule 32 C.R. Vol. 16, Tab. 41, pp. 44-52). The circuit court granted the State's Motion to Dismiss and summarily dismissed West's Rule 32 petition as untimely on March 12, 2003. (Rule 32 C.R. Vol. 16, p. 90). The Alabama Court of Criminal Appeals affirmed the circuit court's dismissal of West's Rule 32 petition
West subsequently petitioned the Alabama Supreme Court for certiorari review. On March 5, 2004, the Alabama Supreme Court summarily granted the writ and "suspend[ed] the provisions of Rule 39(g) and (h), Ala. R.App. P., allowing [West] to file a brief." Ex parte West, 890 So.2d 210 (Ala.2004). After finding that West's Rule 32 petition was timely filed, the Alabama Supreme Court remanded the case to be considered in the first instance by the circuit court. See id. at 211.
On March 29, 2004, the State filed an Answer as well as a motion for summary dismissal pursuant to Alabama Rule of Criminal Procedure 32.7(d), a motion for West to amend certain claims that were insufficiently pleaded under Rules 32.3 and 32.6(b), and a motion for summary dismissal pursuant to Rule 32.2(a). (Rule 32 C.R. Vol. 17, Tabs. 44-47, pp. 17-47). On December 28, 2004, the Rule 32 circuit court granted the State's motion for summary dismissal pursuant to Alabama Rule of Criminal Procedure Rule 32.2(a), and thereby summarily dismissed three claims in West's Rule 32 petition as procedurally barred.
On December 21, 2005, West filed a Notice of Appeal. (Rule 32 C.R. Vol. 17, p. 128). The Alabama Court of Criminal Appeals affirmed the circuit court's decision in an unpublished opinion on July 22, 2007. (Rule 32 C.R. Vol. 21, Tab. 73). The Supreme Court of Alabama denied certiorari review on August 15, 2008. (Rule 32 C.R. Vol. 21, Tab. 74). Shortly thereafter, on August 29, 2008, West filed his present Petition for Writ of Habeas Corpus (the "Petition" or "Habeas Petition") in this Court.
Pursuant to 28 U.S.C. § 2254(a) (2006), a federal district court is prohibited from entertaining a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court" unless the petitioner alleges "he is in custody in violation of the Constitution or laws or treaties of the United States." In other words, this Court's review of habeas claims is limited to federal constitutional questions. Claims pertaining
Prior to seeking relief in federal court from a state court conviction and sentence, a habeas petitioner is first required to present his federal claims to the state court by exhausting all of the state's available procedures. See 28 U.S.C. § 2254(b)(1) (2006). The purpose of this requirement is to ensure that state courts are afforded the first opportunity to correct federal questions affecting the validity of state court convictions. As explained by the Eleventh Circuit:
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.1998) (alterations in original)
Moreover, if a petitioner fails to raise his federal claim to the state court at the time and in the manner dictated by the state's procedural rules, the state court can decide the claim is not entitled to a review on the merits, i.e., "the petitioner will have procedurally defaulted on that claim." Mason, 605 F.3d at 1119 (emphasis added). Usually, if the last state court to examine a claim explicitly finds that the claim is defaulted because the petitioner failed to follow state procedural rules, then federal review of the claim is also precluded pursuant to federal procedural default principles. As the Eleventh Circuit recently stated:
Ward v. Hall, 592 F.3d 1144, 1156-57 (11th Cir.2010).
Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir.1999) (alterations in original).
The Supreme Court defines an "adequate and independent" state court decision as one which "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Whether or not a state procedural rule is "adequate and independent" as to have a preclusive effect on federal review of a claim "is itself a federal question." Id. (quoting Douglas v. Alabama, 380 U.S. 415, 422, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)).
A state procedural rule is "independent of the federal question" when it "rests solidly on state law grounds [that are] not `intertwined with an interpretation of federal law.'" Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001) (quoting Card v. Dugger, 911 F.2d 1494, 1516 (11th Cir. 1990)). To be considered "adequate," the state procedural rule must be both "firmly established and regularly followed." Kemna, 534 U.S. at 376, 122 S.Ct. 877 (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). Put differently, the rule must be "clear [and] closely hewn to" by the state for a federal court to find it to be adequate. Cf. James, 466 U.S. at 346, 104 S.Ct. 1830. This does not mean that the procedural rule must be rigidly applied in every instance, or that occasional failure to do so eliminates its "adequacy." Rather, the "adequacy" requirement means only that the procedural rule "must not be applied in an arbitrary or unprecedented fashion." Judd, 250 F.3d at 1313. If the state procedural rule is adequate, then the federal court will normally foreclose its review. If, however, the rule is not firmly established or if it is applied in an arbitrary, unprecedented, and manifestly unfair fashion, it is not adequate to preclude federal review. See Card, 911 F.2d at 1517.
Of course, there are also instances where the doctrines of procedural default and exhaustion intertwine. For instance, if a petitioner's federal claim is unexhausted, a district court will traditionally dismiss it without prejudice or stay the cause of action to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). But "if it is clear from state law that any future attempts at exhaustion [in state court] would be futile" under the state's own procedural rules, a court can simply find that the claim is "procedurally defaulted, even absent a state court determination to that effect." Bailey, 172 F.3d at 1305 (citation omitted).
"There are three situations in which an otherwise valid state ground will
Edwards v. Carpenter, 529 U.S. 446, 455, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (Breyer, J., concurring) (internal citations omitted); see also Coleman, 501 U.S. at 749-50, 111 S.Ct. 2546 ("[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice.") (citations and internal quotation marks omitted); Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ("[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.").
"A federal court may still address the merits of a procedurally defaulted claim if the petitioner can show cause for the default and actual prejudice resulting from the alleged constitutional violation." Ward, 592 F.3d at 1157 (citing Wainwright v. Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). This so-called "cause and prejudice" standard is clearly framed in the conjunctive; therefore, a petitioner must affirmatively prove both cause and prejudice. Cf. id. (emphasis added). To show "cause," a petitioner must prove that "some objective factor external to the defense impeded counsel's efforts" to raise the claim previously. Carrier, 477 U.S. at 488, 106 S.Ct. 2639; see also Amadeo v. Zant, 486 U.S. 214, 221-22, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988).
McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (citations omitted); see also Coleman, 501 U.S. at 754, 111 S.Ct. 2546 ("Attorney error that constitutes ineffective assistance of counsel is cause...."). Further, "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Reed v.
Once cause is proved, a habeas petitioner must also prove prejudice. Such a showing must go beyond proof "that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam).
In a "rare," "extraordinary,"
By enacting the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
A state court's adjudication of a claim will be sustained under section 2254(d)(1) unless it is "contrary to" clearly established, controlling Supreme Court precedent or it is an "unreasonable application" of that law. These are two different inquiries, not to be confused or conflated, as the Supreme Court explained in Williams v. Taylor.
A state-court determination can be "contrary to" clearly established Supreme Court precedent in either of two ways:
Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. 1495 (citation omitted).
Likewise, a state-court determination can be an "unreasonable application"
Id. at 407, 120 S.Ct. 1495 (citation omitted). And whether a particular application of Supreme Court precedent is "unreasonable" turns not on subjective factors, but on whether the application of Supreme Court precedent at issue was "objectively unreasonable." See Alderman, 468 F.3d at 791; Putman v. Head, 268 F.3d 1223, 1241-49 (11th Cir.2001). It is important to note, however, that the Supreme "Court has held on numerous occasions that it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (citations and internal quotation marks omitted). Therefore, the proper inquiry under the AEDPA "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (citation omitted).
Finally, section "2254(d)(2) regulates federal court review of state court findings of fact; the section limits the availability of relief to `decisions that were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Alderman, 468 F.3d at 791 (brackets omitted) (quoting § 2254(d)(2)). And commensurate with the deference accorded to a state court's factual findings, "the petitioner must rebut `the presumption of correctness [of a state court's factual findings] by clear and convincing evidence.'" Ward, 592 F.3d at 1155-56 (alterations in original) (quoting § 2254(e)(1)).
Because "habeas corpus review exists only to review errors of constitutional dimension," a habeas corpus petition must meet the "heightened pleading requirements [of] 28 U.S.C. § 2254 Rule 2(c)." McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (citation omitted). "[T]he petition must `specify all the grounds for relief available to the petitioner' and `state the facts supporting each ground.'" Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254). Accordingly, a "general reference to the transcripts, case records and briefs on appeal patently fails to comply with Rule 2(c)." Phillips v. Dormire, No. 4:04CV1483, 2006 WL 744387, at *1 (E.D.Mo. Mar. 20, 2006) (citing Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990)); see also Grant v. Georgia, 358 F.2d 742 (5th Cir.1966) (per curiam) ("The application fails to allege any facts upon which the trial court could find a deprivation of a constitutional right, or any other basis for collateral attack. Mere conclusionary allegations will not suffice." (citation omitted)).
The burden of proof is on the habeas petitioner "to establish his right to habeas relief and he must prove all facts necessary to show a constitutional violation." Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir.2008).
In the only paragraph West attributes to the standard of review in his present, federal habeas petition, he states:
Petition (Doc. 1) at 25. West apparently operates under the belief that the Eleventh Circuit's eventual "de novo [review of this] district court's grant or denial of [his] habeas corpus petition," Ward, 592 F.3d at 1155, is the determinative standard for this Court to address each and every issue set forth in his petition. West is clearly mistaken, however, because even the Eleventh Circuit is bound to review claims raised within habeas petitions under the standards of review promulgated by both Congress and the Supreme Court. See, e.g., Powell v. Allen, 602 F.3d 1263, 1268 (11th Cir.2010) (per curiam) ("[O]ur review of the Alabama habeas court's decision is limited by the terms of 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act...." (citations and footnote omitted)).
To begin, West filed his habeas petition after April 24, 1996, and thus federal "review of [his] habeas petition ... is limited by the terms of 28 U.S.C. § 2254 as amended by the [AEDPA]." Land v. Allen, 573 F.3d 1211, 1216 (11th Cir.2009) (per curiam) (citation omitted). But in spite of the stringent limitations the AEDPA imposes upon this Court, West still fails to cite any case post-1995 — i.e., after the AEDPA's enactment — within his recitation of the standard of review. Petition (Doc. 1) at 25. An omission West repeated in his Reply Brief. See Reply Br. (Doc. 19) at 31. Further, West's inadvertence was compounded by the fact that he neglected to take the AEDPA into account when crafting his arguments.
On the other hand, West argues, for the first time in his Reply Brief, that the state collateral court's ruling that his "ineffectiveness claim failed to meet the pleading requirements of Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure.... does not constitute an adequate independent ground for precluding federal review of his claims." Reply Br. (Doc. 19) at 34-35.
With these principles in mind, the Court now turns to West's two principal claims.
West raises two principal claims in his petition: (1) ineffective assistance of trial counsel; and (2) denial of expert assistance. The Court will address each in turn.
West first alleges that he was denied effective assistance of counsel in four respects. See Petition (Doc. 1) at 27-42. Before addressing West's allegations, however, the Court will discuss the general constitutional standard applicable to each of West's ineffective assistance sub-claims.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-pronged standard for judging, under the Sixth Amendment, the effectiveness of attorneys who represent criminal defendants at trial or on direct appeal.
Id. at 687, 104 S.Ct. 2052 (emphasis added); see also Reed v. Sec'y, Fla. Dep't of Corr., 593 F.3d 1217, 1239-41 (11th Cir. 2010). Stated differently, "[a] petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced his defense." Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted).
Because Strickland's preceding two-part test is clearly framed in the conjunctive, a petitioner bears the burden of proving both "deficient performance" and "prejudice" by "a preponderance of competent evidence." Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc).
Further, when assessing ineffective assistance of counsel claims:
Williams v. Allen, 598 F.3d 778, 789 (11th Cir.2010) (brackets in original omitted) (citations omitted); see also Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009) (per curiam).
When reviewing whether defense counsel's performance was deficient, "the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009); (per curiam) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)). As such, a habeas petitioner must show that counsel's representation fell "`below an objective standard of reasonableness' in light of `prevailing professional norms'" in order to establish deficient performance. Id. at 16, 130 S.Ct. 13 (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052); see
But such a showing is not for the weary as Strickland instructs lower federal courts to be "highly deferential" while engaging in such assessments:
Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (emphasis added) (citations and quotation marks omitted); see also Whisenhant v. Allen, 556 F.3d 1198, 1203 (11th Cir.2009) (per curiam) ("To counteract the distorting effects of hindsight, the defendant bears the burden of overcoming a strong presumption that the challenged action is sound trial strategy." (citation omitted)). Simply put, a habeas petitioner "must establish that no competent counsel would have taken the action that his counsel did take" to overcome the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Chandler, 218 F.3d at 1315 (citation omitted); see also Stewart v. Sec'y, Dep't of Corr., 476 F.3d 1193, 1209 (11th Cir.2007).
The reasonableness of counsel's performance is judged from the perspective of the attorney, at the time of the alleged error, and in light of all the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir.2008) ("We review counsel's performance `from counsel's perspective at the time,' to avoid `the distorting effects of hindsight.'" (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052)); Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir.2001) (giving lawyers "the benefit of the doubt for `heat of the battle' tactical decisions"). As the Eleventh Circuit has stated:
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir.2005). "Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
Even when counsel performed in a deficient manner, a habeas petitioner must still establish that he or she suffered prejudice as a result of that deficiency. To satisfy this standard, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. at 391, 120 S.Ct. 1495. Put differently, the Eleventh Circuit has opined: "The prejudice prong does not focus only on the outcome; rather, to establish prejudice, the petitioner must show that counsel's deficient representation rendered the result of the trial fundamentally unfair or unreliable." Rhode v. Hall, 582 F.3d 1273, 1280 (11th Cir.2009) (citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). And "[w]hen evaluating this probability, `a court ... must consider the totality of the evidence before the judge or jury.'" Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir.2002) (citation omitted).
Further, a habeas petitioner "must affirmatively prove prejudice, because `[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial.'" Gilreath v. Head, 234 F.3d 547, 551 (11th Cir.2000) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). The fact that counsel's "error had some conceivable effect on the outcome of the proceeding" is insufficient to show prejudice. Strickland, 466 U.S. at 693, 104 S.Ct. 2052; see also Porter, 130 S.Ct. at 455-56. Instead, a petitioner must present competent evidence proving "that trial counsel's deficient performance deprived him of `a trial whose result is reliable.'" Brown v. Jones, 255 F.3d 1273, 1278 (11th Cir.2001) (citation omitted). Therefore, "when a petitioner challenges a death sentence, `the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).
Lest one forget, section 2254's application applies in addition to the underlying substantive law. "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly so.'" Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citations omitted). As a result, this "doubly," "highly deferential" standard transforms the Strickland inquiry from "whether counsel's actions were reasonable" into "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. (citations omitted). In other words, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.
Finally, "[ineffectiveness of counsel is a mixed question of fact and law." Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir.2001) (citation omitted). "State court findings of historical facts made in the course of evaluating an ineffectiveness claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d)." Thompson, 255 F.3d at 1297.
West raises a number of alleged deficiencies in his trial counsel's performance, which the Court divides into four general categories: (1) failure to object to the use of a stun belt during trial; (2) failure to investigate and present mitigation evidence during the penalty phase and sentencing hearing; (3) failure to present to the jury the statutory mitigating circumstance of West not having a significant history of prior criminal activity; and (4) failure to request a continuance so that the defense could procure and use an "obliterated documents" expert. See Petition (Doc. 1) at 28-42. On the other hand, Respondents argue that West's sub-claims are procedurally defaulted because the Alabama Court of Criminal Appeals dismissed each claim under an independent and adequate state procedural rule, see Answer (Doc. 10) at 8-20, and also contend that sub-claims two (2) through four (4) above are conclusory in nature and fail to state a valid claim for relief under 28 U.S.C. § 2254. Id. at 11-20. Regardless, Respondents declare that West cannot show he is entitled to 28 U.S.C. § 2254(d) or (e)(2) relief. Id. at 8-20; Respondents' Brief on the Merits (Doc. 11) at 20-41.
West alleges that his trial counsel, John David Floyd and Rodney L. Ward,
Respondents counter by first arguing that "[t]his claim is procedurally defaulted... because it was dismissed under an independent and adequate state procedural rule." Answer (Doc. 10) at 8. Specifically, Respondents argue that the Rule 32 circuit court, which was later affirmed by the Alabama Court of Criminal Appeals, "held that this claim was due to be dismissed, under Rule 32.7(d) of the Alabama Rules of Criminal Procedure, because it failed to comply with the specificity and full factual pleading requirements of Rule 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure." Id. (citing Rule 32 C.R. Vol. 21, Tab. 72, pp. 19-21; Rule 32 C.R. Vol. 21, Tab. 73, pp. 9-13). Alternatively, Respondents also argue that "this claim was raised in West's Rule 32 petition and on collateral appeal in the Alabama Court of Criminal Appeals and was denied on the merits," id. at 9 (citations omitted), and thus:
Id. at 9-10 (quoting 28 U.S.C. § 2254(d)).
The Alabama Court of Appeals' opinion is set out below. The reader is advised that any additional factual findings — either made by a state court or other pertinent historical facts from the record — will be set out in footnotes. On collateral review, the Alabama Court of Criminal Appeals made the following findings of fact and conclusions of law:
(Rule 32 C.R. Vol. 21, Tab. 73, pp. 9-13). And to the extent Respondents now rely upon the Rule 32 circuit court's findings of fact or incorporates that court's legal analysis as its own, Respondents quote the following passages from the Rule 32 circuit court's final order:
Respondents' Br. (Doc. 11) at 21-22 (quoting Rule 32 C.R. Vol. 21, Tab. 72, pp. 19-21).
First, as to Respondents' contention that "[t]his claim is procedurally defaulted from this Court's review because it was dismissed under an independent and adequate state procedural rule" by the Rule 32 circuit court, Respondents' argument is fundamentally flawed. Answer (Doc. 10) at 8. Federal review of a habeas petitioner's claim is only "barred by the procedural default doctrine if the last state court to review the claim states clearly and expressly that its judgment rests on a procedural bar." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir.1991) (emphasis added) (citing Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)).
Moreover, Respondents' reliance on the Rule 32 circuit court's holding is misplaced as it was not the "the last state court to review [West's] claim." Johnson, 938 F.2d at 1173 (citation omitted). Even though that court, in a footnote, dismissed West's claim as insufficiently plead under Rules 32.6(b) and 32.3, (see Rule 32 C.R. Vol. 21, Tab. 72, p. 21 n. 3), the Alabama Court of Criminal Appeals did not rely on this ground when it denied West's claim. (See Rule 32 C.R. Vol. 21, Tab. 73, pp. 9-13). And other than a reference to the Rule 32 circuit court's alternative ruling in a footnote itself, the Alabama Court of Criminal Appeals neither stated that West failed to satisfy the applicable pleading standards nor cited a state procedural rule in support. See id. at 10 n. 2. Therefore, Respondents are clearly mistaken in arguing that this claim is procedurally barred as resting on an independent and adequate state procedural rule. Because the Alabama Court of Criminal Appeals considered and rejected this claim on the merits, federal habeas review pursuant to 28 U.S.C. § 2254(d) is proper.
To reiterate, West "must show that counsel's performance was deficient, and that the deficiency prejudiced his defense" in order to carry his burden under Strickland and thereby establish ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. at 521, 123 S.Ct. 2527 (citation omitted). But West's burden does not end there as section 2254 also mandates that "[a] federal court cannot grant a petition for writ of habeas corpus on claims adjudicated on the merits in the state court unless the decision was (1) `contrary to' or an `unreasonable application of' clearly established' Supreme Court
To overcome the "strong presumption" that counsel performed in a competent manner, West "bears the heavy — but not insurmountable — burden of persuading the court `that no competent counsel would have taken the action that his counsel did take.'" Haliburton v. Sec'y for Dep't of Corr., 342 F.3d 1233, 1243 (11th Cir.2003) (quoting Chandler, 218 F.3d at 1314-15). In making this determination, this Court assesses the reasonableness of counsel's performance from the perspective of West's trial counsel, at the time of the alleged error, and in light of all the circumstances. See, e.g., Newland, 527 F.3d at 1184; Johnson v. Alabama, 256 F.3d at 1176. At all times, however, this Court "must indulge a strong presumption that [West's trial] counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. 104 S.Ct. 2052.
In regards to this portion of West's ineffective assistance claim, he argues that his trial counsel violated his "constitutional rights to be present at his own trial, to confer with counsel, and to participate in his own defense" by not objecting to the use of a stun belt during his trial. Petition (doc. 1) at 31 (citing Durham, 287 F.3d 1297). As to whether his trial counsel's performance was deficient, West's primary authority for this contention is the Eleventh Circuit's decision in United States v. Durham, 287 F.3d 1297 (11th Cir.2002). Id. at 28-32. In that case, the Eleventh Circuit held that a federal district court "abused its discretion in ordering [the defendant] to wear the belt" during his trial. Durham, 287 F.3d at 1309. For a variety of reasons, however, Durham is inapposite to the issue presented in West's case.
First, as West himself points out, Durham concerned an issue of first impression in the Eleventh Circuit. Petition (Doc. 1) at 28; see also Durham, 287 F.3d at 1303.
Second, even if Durham had been decided before West's trial, it does not embody "clearly established Federal law" for purposes of § 2254(d)(1). See Bowles, 608 F.3d at 1316 ("[F]ederal law is `clearly established' only when it is `embodied in a holding' of the Supreme Court. Dicta in Supreme Court opinions is not enough. Nor can anything in a federal court of appeals decision, even a holding directly on point, clearly establish federal law for § 2254(d)(1) purposes." (citations omitted)). Because the Eleventh Circuit's holding in Durham was not "`embodied in a holding' of the Supreme Court," see id., the Alabama collateral court's failure to extend any ruling reached by the court in Durham could not result in a ruling that was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. at 405, 407, 120 S.Ct. 1495.
Third, and finally, Durham was decided on direct appeal and concerned a situation where defense counsel filed a pre-trial "motion seeking to prohibit [the stun belt's] use," which the district court denied after a hearing on the issue. 287 F.3d at 1301, 1303; see also Martin v. Sec'y, DOC, 347 Fed.Appx. 485, 494 (11th Cir.2009) (per curiam) (holding that a section 2254 petitioner's reliance on Durham was "misplaced" because Durham "involved the direct appeal of a district court's denial of a motion to prohibit the use of a stun belt," rather than "[t]he relevant inquiry in a § 2254 proceeding [which] is whether the state's decision violated clearly established Supreme Court case law" (citations omitted)). As such, the Eleventh Circuit was faced with an entirely different inquiry; it addressed whether the district court abused its discretion by utilizing this form of security measure when defense counsel had objected both before and during trial to its use. See Durham, 287 F.3d at 1301-04. It did not address whether the defense counsel's performance fell below the standard established in Strickland, much less "whether the state court's application of the Strickland standard was unreasonable," which is the relevant inquiry for a court conducting federal habeas review. Harrington, 131 S.Ct. at 785; see also Martin, 347 Fed.Appx. at 494.
Viewed this way, the Alabama Court of Criminal Appeals' ruling was neither "contrary to, [n]or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). It held that West's trial "counsel's decision not to object to the use of the stun belt did not constitute deficient performance" because it "was a reasonable tactical decision... made after a thorough investigation of the facts and the law." (Rule 32 C.R. Vol. 21, Tab. 73, p. 11 (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052)). This holding was based on facts adduced during the Rule 32 evidentiary hearing where West's trial counsel testified that he preferred using a stun belt, as opposed to leg irons or handcuffs, because it was not visible to the jury. Id. at 10-11.
In light of the foregoing, West's trial counsel made an "objectively reasonable choice[ ]" by deciding not to object to the use of a stun belt during trial. Bobby, 130 S.Ct. at 17 (citation omitted). And because West's trial counsel is afforded "the benefit of the doubt for `heat of the battle' tactical decisions," Johnson v. Alabama, 256 F.3d at 1176, this Court cannot say that the Alabama Court of Criminal Appeals' ruling that West failed to establish deficient performance resulted in a holding that "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). In other words, West has failed to "show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement," and thus his claim is due to be denied. Harrington, 131 S.Ct. at 786-87.
Even assuming his trial counsel performed deficiently, West is still unable to "show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. After reviewing the record as well as the arguments made before this Court, it is clear that West has not proven "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Simply put, West has failed to carry his burden of proof as he has not shown that the outcome of the proceedings would have been different but for his counsel's failure to object to the stun belt's use at trial. See Williams v. Allen, 598 F.3d at 789 ("The petitioner bears the burden of proof on the performance prong as well as the prejudice prong of a Strickland claim, and both prongs must be proved to prevail." (citation omitted)).
In Marquard v. Sec'y for Dep't of Corr., the Eleventh Circuit addressed the retroactivity of the Supreme Court's ruling in Deck v. Missouri, 544 U.S. 622, 632-33, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), which held "that routine shackling during the penalty phase of a capital trial, without a case-specific finding that security needs justify shackling, violates a defendant's due process rights unless the state shows beyond a reasonable doubt that the shackling did not contribute to the verdict." Marquard v. Secretary for Dept. of Corrections, 429 F.3d 1278, 1311 (11th Cir.2005) (citing Deck, 544 U.S. at 632-33, 125 S.Ct. 2007). After determining that "Deck announced [a] new constitutional rule of criminal procedure" that did "not apply retroactively to Marquard's § 2254 petition," the Eleventh Circuit concluded:
Id. at 1313-14 (footnote and parallel citations omitted).
As in Marquard, to establish Strickland prejudice West "still must show a reasonable probability that, absent [having to wear the stun belt], the sentencer would have concluded that the balance of aggravating factors and mitigating factors did not warrant death and would have imposed a life sentence." Id. at 1314 (citations omitted). But West has failed to carry his burden as to either aspect of this ineffective assistance sub-claim, that is: (1) the stun belt impacted his presumption of innocence because it was visible to the jury; and (2) it impeded his ability to participate in his trial. See Petition (Doc. 1) at 29, 31-32.
First, as both the Rule 32 circuit court and the Alabama Court of Criminal Appeals concluded, West has not presented evidence to establish that any juror observed him wearing the stun belt at any time during either the guilt or penalty phase of his trial. (See Rule 32 C.R. Vol. 21, Tab. 72, p. 20; Rule 32 C.R. Vol. 21, Tab. 73, p. 10). Moreover, West's trial counsel testified at the Rule 32 evidentiary hearing "that he could not state that any juror observed the stun belt" and that "[t]he only time [he] saw the stun belt was when West lifted his shirt to show it to [him]." (Rule 32 C.R. Vol. 21, Tab. 73, p. 11).
Second, West has not shown that the stun belt caused such a psychological impact that it prevented him from participating in his own defense or conferring with his attorneys. On the contrary, the evidence adduced at the Rule 32 evidentiary
In conclusion, West was required to "affirmatively prove prejudice," yet he failed to prove either that the jury observed him wearing the stun belt or that it impacted his ability to participate in his own trial. Gilreath, 234 F.3d at 551; see also Martin, 347 Fed.Appx. at 494-95 (holding that a § 2254 petitioner failed to prove prejudice because "the evidence presented at the evidentiary hearing established .... [that he] communicated with counsel throughout trial and participated in his defense, and the stun belt was placed underneath [his] sweater and not visible to the jury"). Because West has not shown that his trial counsel's failure to object to the use of the stun belt "rendered the result of the trial fundamentally unfair or unreliable," he accordingly failed to establish Strickland prejudice. Rhode, 582 F.3d at 1280 (citation omitted). Therefore, West's claim is due to be denied as he has not shown that the Alabama Court of Criminal Appeals' ruling was either "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1).
In this regard, West primarily contends that his trial counsel was "grossly ineffective"
Id. at 34-37 (alterations in original). West also asserts that his "[t]rial counsel offered no evidence or witnesses during either the penalty phase or the sentencing hearing." Id. at 34 (citing R. Vol. 11-12, pp. 1778-80, 1807, 1809). Finally, West concludes by simply stating that "[t]he prejudice caused by counsel's ineffective assistance is evidenced by the jury's recommendation of the death sentence by a vote of ten to two" and "[h]ad counsel conducted an adequate investigation concerning mitigation and presented such evidence, it is very likely that the jury's recommendation would have been different." Id. at 38.
Respondents raise three arguments in response to West's claim. First, Respondents assert that "this Court should summarily dismiss this claim because it is conclusory in nature and fails to state a valid claim for relief under 28 U.S.C. § 2254." Answer (Doc. 10) at 13. In particular, Respondents argue that "West contends that his trial counsel were ineffective for failing to investigate and present mitigation
On collateral review, the Alabama Court of Criminal Appeals made the following findings of fact and conclusions of law:
Respondents' Br. (Doc. 11) at 28-30 (quoting Rule 32 C.R. Vol. 21, Tab. 72, pp. 24-30).
At the outset, this claim does not, or at least should not, merit extensive
Habeas Rule 2(c) required West's present habeas petition to state the facts supporting each ground for relief, yet he has not provided facts describing how he was prejudiced — an essential element of his claim — by his trial counsel's purported deficiencies. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ("The ... presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." (citations omitted)). Put differently, West failed to come forward with even one piece of mitigating evidence, years after his initial conviction, that his counsel should have presented. The absence of a fully-developed argument necessarily leads this Court to conclude that this claim is conclusory and fails to allege a basis for habeas relief. See id. Even though this aspect of West's ineffective assistance claim is due to be dismissed, the Court will nevertheless address the other portions of his claim as instructed by the Eleventh Circuit.
Respondents further contend that "[t]his claim is procedurally defaulted from this Court's review because it was dismissed under an independent and adequate state procedural rule." Answer (Doc. 10) at 11. During West's Rule 32 proceedings, the Alabama Court of Criminal Appeals dismissed this claim as insufficiently pleaded under Rule 32.3 and Rule 32.6(b) of the Alabama Rules of Criminal Procedure. (Rule 32 C.R. 21, Tab. 73, p. 13 ("West failed to plead this claim with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b).")).
Judd, 250 F.3d at 1313 (emphasis added) (internal citations omitted).
It is clear that the preceding three-part test governs the resolution of this issue, which is evidenced by the Eleventh Circuit's steadfast recital of its commands. See, e.g., Mason, 605 F.3d at 1119-20 (quoting Judd, 250 F.3d at 1313). On the other hand, the Eleventh Circuit has reached disparate outcomes when applying this framework to situations where Alabama
As to the first prong, the Alabama Court of Criminal Appeals "clearly and expressly state[d] that it [was] relying on state procedural rules to resolve the federal claim." Judd, 250 F.3d at 1313. After summarizing West's argument and finding "these allegations contain no facts whatsoever," it held that "these allegations failed to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), and this portion of this claim of ineffective assistance of counsel was properly denied." (Rule 32 C.R. Vol. 21, Tab. 73, p. 14). But a state court's explicit reliance on a procedural rule alone does not folly satisfy Judd's first prong because the state court must also reach its procedural ruling "without reaching the merits of that claim." 250 F.3d at 1313.
Less than a year ago, the Eleventh Circuit addressed a habeas petitioner's ineffective assistance of counsel claim where "[t]he Rule 32 court ... found that [the petitioner] failed to plead facts on which an ineffective assistance claim could be based and, for that reason, denied [his] claim...." Powell, 602 F.3d at 1272-73 (citation and footnote omitted). In Powell the Eleventh Circuit went on to characterize "the Rule 32 court's rejection of [the petitioner's] claim as a holding on the merits." Id. at 1273 (citations omitted). Other than a passing reference to Judd, the only support cited by the court was a parenthetical quote to a Fifth Circuit case that found "no procedural bar from the state court ruling ... because the ruling `require[d] some evaluation, however cursory, of the merits of a petitioner's claim.'" Id. (quoting Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.1997)).
A few years earlier, however, the Eleventh Circuit reached the opposite conclusion in an unpublished opinion, albeit implicitly.
However, there is no need to parse the differences between the Eleventh Circuit's disparate rulings in Powell and Jenkins because the Eleventh Circuit's own rules provide that "[u]npublished opinions are
Returning to the case at hand, the Alabama Court of Criminals Appeals' procedural ruling that West did not comply with the specificity and full factual pleading requirements in Rules 32.3 and 32.6(b) will be treated as a holding on the merits since it "require[d] some evaluation, however cursory, of the merits of [West's] claim." Powell, 602 F.3d at 1273 (quoting Stokes, 123 F.3d at 860). And this finding is evidenced from the Court of Criminal Appeals' holding that "West failed to plead any specific facts alleging prejudice." (Rule 32 C.R. Vol. 21, Tab. 73, p. 14). Therefore, this aspect of West's ineffective assistance claim is not procedurally defaulted as the state collateral court's ruling does not satisfy the first prong of Judd's three-part test, and this Court is accordingly not barred from reaching the merits of this claim.
In addition to discussing procedural default, Powell also states this Court's role in addressing the merits of West's claim. It states:
Powell, 602 F.3d at 1273 (footnote omitted). To have raised an ineffective assistance claim before Alabama courts, West's Rule 32 petition
But the preceding does not describe the totality of West's burden. As Justice Kennedy explained earlier this year, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Harrington, 131 S.Ct. at 785; see also id. ("For purposes of § 2254(d)(1), `an unreasonable application of federal law is different from an incorrect application of federal law.'" (emphasis in original) (citation omitted)). Due to the AEDPA's application in section 2254 proceedings, "[establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788. Thus, a federal habeas court must sustain a state collateral court's determination that a petitioner
In the present case, it is clear, for a number of reasons, that West's Rule 32 petition failed to establish Strickland prejudice. Because of West's inability to establish this prong of the Strickland inquiry, the Court need not address whether his trial counsel's performance was, in fact, deficient.
As to whether West's Rule 32 petition sufficiently alleged ineffective assistance, the Alabama Court of Criminal Appeals held:
(Rule 32 C.R. Vol. 21, Tab. 73, p. 14). Having reviewed the briefs as well as an independent review of the state court record, this Court concludes that the Alabama Court of Criminal Appeals' decision was neither "contrary to, [n]or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1).
Other than reciting a litany of potential sources that are strikingly similar to those found in the 1989 ABA Guidelines,
West's Rule 32 petition was required to "specifically, `show that there is a reasonable probability that ... the result of the [sentencing] proceeding would have been different,' Strickland, 466 U.S. at 694, 104 S.Ct. 2052, `if competent counsel had presented and explained the significance of all the available evidence.' Williams, 529 U.S. at 399, 120 S.Ct. 1495." Lawhorn v. Allen, 519 F.3d 1272, 1296 (11th Cir.2008) (alterations in original) (parallel citations omitted). But West's Rule 32 petition did not point to one piece of mitigation evidence that should have presented as part of his mitigation defense, (see Rule 32 C.R. Vol. 16, Tab. 40, ¶¶ 67-82); an omission West repeated in his present habeas petition, see Petition (Doc. 1) at 33-38. If West could not cite any mitigation evidence years after his state court conviction, then, a fortiori, he could not establish prejudice from his counsel's failure to present it.
But as the Court of Criminal Appeals concluded, West did not call any witness at the Rule 32 evidentiary hearing to substantiate these claims. (See Rule 32 C.R. Vol. 21, Tab. 73, pp. 14-15). Instead, he only called a prison correctional officer, a deputy from the Etowah County Sheriff's Office, and one of two attorneys that represented him at trial. (See Rule 32 R. Vols. 17-18, Tab. 49). By failing to support these well-plead allegations with admissible evidence, West failed to "affirmatively prove prejudice." Gilreath, 234 F.3d at 551 (citation omitted). Therefore, the Alabama Court of Criminal Appeals was correct to conclude that "West failed to offer any proof to support these sufficiently-pleaded allegations," (Rule 32 C.R. Vol. 21, Tab. 73, p. 15), and its ruling was not "contrary to or an unreasonable application of Supreme Court precedent." Powell, 602 F.3d at 1273. Moreover, and in spite of the foregoing, West neither includes these well-plead allegations within his present habeas petition nor faults the Court of Criminal Appeals for this aspect of its ruling. As such, West is deemed to have abandoned this aspect of his claim. See Whisenhant, 556 F.3d at 1202-03 ("Because [the petitioner] does not raise these claims in his brief to us, these claims are abandoned." (citation omitted)).
Alternatively, even if West sufficiently plead this claim in his Rule 32 petition, his claim still does not warrant habeas relief. First, West has failed to proffer any testimony or documents that, assuming it had been presented to the sentencer, "would have added [any]thing of value." Bobby, 130 S.Ct. at 19 (citation omitted). Unlike cases where petitioners sufficiently plead Strickland violations, this Court is unable to "reweigh the evidence in aggravation against the totality of available mitigating evidence" because West has failed to present any mitigating evidence — either during state or federal proceedings — which would have been presented at the sentencing phase but for his counsel's alleged deficient performance. Kokal, 623 F.3d at 1345-46 (quoting Wiggins, 539 U.S. at 534, 123 S.Ct. 2527).
Second, and more importantly, West's trial counsel did not present a mitigation defense during the penalty phase because West instructed them not to do so. During the Rule 32 evidentiary hearing, West's trial counsel, John Floyd, testified:
(Rule 32 R. Vol. 18, Tab. 49, pp. 88-89). Floyd further testified:
Id. at 91-93.
Recently, in Allen v. Sec'y, Fla. Dep't of Corr., the Eleventh Circuit faced a nearly identical situation and held:
Allen, 611 F.3d at 762-63, 765 (emphasis in original) (footnote omitted).
As in Allen, West affirmatively and repeatedly instructed his trial counsel to not present a mitigation defense. (Rule 32 C.R. Vol. 18, Tab. 49, pp. 88-89, 91-93); see Allen, 611 F.3d at 760-61, 765.
Id. (internal citation omitted). Therefore, West's claim is due to denied.
During the sentencing phase of West's trial, his counsel argued to the jury the statutory mitigating factor of "West's age at the time of the offense." Petition (Doc. 1) at 38.
Id. (emphasis in original) (quoting R. Vol. 11, p. 1778).
On collateral review, the Alabama Court of Criminal Appeals made the following findings of fact and conclusions of law:
(Cl.40.)[
(Rule 32 C.R. Vol. 21, Tab. 73, pp. 15-17). And to the extent that Respondents now rely upon the Rule 32 circuit court's findings of fact or incorporates that court's legal analysis as its own, Respondents quote the following passages from the Rule 32 circuit court's final order:
Respondents' Br. (Doc. 11) at 34-35 (quoting Rule 32 C.R. Vol. 21, Tab. 72, pp. 30-33).
As to the pleading requirements governing federal habeas petitions, West
Absent a citation to Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), after asserting that his trial counsel's conduct "rendered the penalty phase of [his] trial unreliable," see Petition (Doc. 1) at 39, this portion of West's ineffective assistance claim amounts to nothing more than a "general reference to the transcripts, case records and briefs on appeal [that] patently fails to comply with Rule 2(c)" of the Rules Governing Section 2254 Cases in the U.S. District Courts. Phillips, 2006 WL 744387, at *1 (citation omitted). Because West's petition merely asserts a ground for relief without articulating how his trial counsel violated Strickland, much less arguing how the Alabama collateral court's ruling to the contrary was either contrary to or an unreasonable application of clearly established federal law, West failed to satisfy the requirements of Habeas Rule 2(c). See Smith v. Wainwright, 777 F.2d at 616 (holding that a general allegation of ineffective assistance of counsel is insufficient; a petition must allege specific errors in counsel's performance and facts showing prejudice); Hill v. Linahan, 697 F.2d 1032, 1036 (11th Cir. 1983) ("The burden of proof in a habeas proceeding is always on the petitioner."). Accordingly, this claim is conclusory and fails to sufficiently plead a basis for federal habeas relief. Even though this ineffective assistance claim is due to be dismissed, the Court will nonetheless address the merits of West's claim.
The Alabama Court of Criminal Appeals dismissed this portion of West's ineffective assistance claim in the same manner in which it dismissed his preceding claim that his trial counsel was ineffective for failing to investigate and present a mitigation defense. (Compare Rule 32 C.R. Vol. 21, Tab. 73, pp. 13-15, with id. at 15-17). Specifically, the court held: "We find that West clearly failed to plead sufficient facts supporting either prong of the Strickland test. Therefore, denial of this claim of ineffective assistance of counsel was proper." Id. at 17. Because the Court of Criminal Appeals' procedural ruling "require[d] some evaluation, however cursory, of the merits of [West's] claim," it is deemed a holding on the merits for purposes of federal habeas review. Powell, 602 F.3d at 1273 (quoting Stokes, 123 F.3d at 860). As such, West's claim is not procedurally barred, and this Court is not
To prevail on an ineffective assistance claim in state court, West's Rule 32 petition "was required to allege specific facts showing that his [trial] counsel's performance was deficient — that counsel's decisions were so unreasonable that they could not be considered as part of the [trial] strategy — and that the deficiency made a difference to the outcome of the proceeding." Jenkins, 210 Fed.Appx. at 899 (citing Strickland, 466 U.S. at 687, 689, 694, 104 S.Ct. 2052). Due to the restrictions imposed by the AEDPA, however, this Court's review is limited to a determination of
Powell, 602 F.3d at 1273 (footnote omitted); see also Harrington, 131 S.Ct. at 788 ("When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.").
The Alabama Court of Criminal Appeals held that the allegations in West's Rule 32 petition
Id. at 17. Because "[b]are conclusions without any supporting facts do not satisfy the pleading requirements of Rule 32.3 and Rule. 32.6(b)" and "West clearly failed to plead sufficient facts supporting either prong of the Strickland test," the Court of Criminal Appeals concluded that "denial of this claim of ineffective assistance of counsel was proper." Id.
Upon reviewing West's Rule 32 petition, it is clear that "those allegations [did not] sufficiently state a claim for ineffective assistance of counsel." Powell, 602 F.3d at 1273 (footnote omitted). Instead of "alleg[ing] specific facts showing that his [trial] counsel's performance was deficient... and that the deficiency made a difference to the outcome of the proceeding," Jenkins, 210 Fed.Appx. at 899 (citation omitted), West's Rule 32 petition only
The only assertion West made in his Rule 32 petition to support the contention that his counsel performed deficiently was that "[n]otwithstanding counsel's decision that only one statutory mitigating factor existed, the trial court determined on remand that an additional statutory mitigating factor existed." (Rule 32 C.R. Vol. 16, Tab. 40, ¶ 85). Within its discussion of this claim, the Alabama Court of Criminal Appeals held that West's Rule 32 petition "failed to allege ... the details of his criminal history and why that history was not significant." (Rule 32 C.R. Vol. 21, Tab. 73, p. 17). By not discussing the details of his criminal history, a fortiori, Alabama collateral courts were unable to discern whether West's trial counsel were in fact deficient by failing to raise the statutory mitigating circumstance that he "ha[d] no significant history of prior criminal activity" to the jury. Ala.Code § 13A-5-51(1) (1975). Viewed in this light, the allegations, or rather the conclusion, in West's Rule 32 petition clearly did not overcome the "evidentiary presumption that [his] counsel acted properly." Harvey v. Warden, 629 F.3d 1228, 1245 (11th Cir. 2011).
Alternatively, from this Court's independent review of the state court record, other reasons support the finding that, in regards to Strickland's performance prong, West's trial counsel's decision not to argue the statutory mitigating circumstance of no significant criminal history was reasonable in light of the facts of West's case. See Parker v. Allen, 565 F.3d 1258, 1285-86 (11th Cir.2009) ("The deficient performance inquiry focuses on `whether counsel's assistance was reasonable considering all of the circumstances'" (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052)). The Rule 32 circuit court found that "it [was] reasonable for an attorney to believe that a previous burglary conviction would negate the possibility of arguing this statutory mitigating circumstance to the jury," (Rule 32 C.R. Vol. 21, Tab. 72, p. 32), which concerned West's March 1997 burglary conviction. (See C.R. Vol. 3, Tab. 1, p. 411). As a result of this conviction, West was placed on probation on March 24, 1997 — only four days before West "was arrested and charged with this offense," i.e., his arrest for capital murder on March 28, 1997. Id. at 413.
While this fact alone may be sufficient to support a finding that West's trial counsel
In light of the foregoing, it becomes clear that it was entirely reasonable for West's trial counsel to conclude that, in the mind of both the judge and jury, West's connection to two previous thefts as well as his use and sale of drugs "would negate the possibility of arguing this statutory mitigating circumstance to the jury." (Rule 32 C.R. Vol. 21, Tab. 72, p. 32); see also Parker, 565 F.3d at 1278 ("The petitioner bears the heavy burden of proving that `no competent counsel would have taken the action' taken by his counsel." (citation omitted)). As such, West has failed to establish that his trial counsel performed in a constitutionally deficient manner, and therefore his claim is due to be denied. Even though West's claim can be denied on this ground alone, the Court will nevertheless discuss Strickland's prejudice prong.
"To show prejudice, [West was required to] prove that there is a reasonable probability that the sentencing judge would have arrived at a different conclusion after being presented with the additional evidence and reweighing the aggravating and mitigating circumstances." Parker, 565 F.3d at 1285. But as the Alabama Court of Criminal Appeals correctly noted, West's Rule 32 petition failed to allege, inter alia, "what aggravating circumstances were found by the trial court." (Rule 32 C.R. Vol. 21, Tab. 73, p. 17). Without these facts, Alabama collateral courts were unable to "reweigh the evidence in aggravation against the totality of available mitigating evidence" and thereby conduct a proper prejudice determination. Kokal, 623 F.3d at 1345 (quoting Wiggins, 539 U.S. at 534, 123 S.Ct. 2527).
Further, West's Rule 32 petition did not "allege that the trial court would not have imposed a death sentence if the jury had recommended a life-without-parole sentence." (Rule 32 C.R. Vol. 21, Tab. 73, p. 17). While it is true that the statutory mitigating factor West cites was not argued before the jury, it does alter the fact that the trial judge found this factor to
In sum, the allegations in West's Rule 32 petition were insufficient to establish prejudice as West "ha[d] not shown a reasonable probability that" if counsel had presented this additional mitigating circumstance to the jury it "would have resulted in a life sentence rather than the death penalty." Williams v. Allen, 598 F.3d at 794-95. Therefore, West's claim is due to be denied.
Finally, West contends that his trial "counsels' failure to request a continuance so that it could obtain expert assistance constituted ineffective assistance of counsel." Petition (Doc. 1) at 41. In particular, West alleges that "[c]ounsel was also ineffective by not making a motion for a continuance so that it could procure an expert to assist the defense in cross-examining the State's `obliterated documents expert,' Stephen [sic] Drexler," because a defense expert could "have offered testimony to rebut or contradict aspects of Mr. Drexler's testimony." Id. at 39-40.
West raises four points in support of his claim that his trial counsel was ineffective for failing to move for a continuance. First, West alleges that the "State's expert's `obliterated documents' testimony was crucial to the prosecution of West" because the letters Drexler deciphered were "the only evidence connecting West with the murder" — apart from the testimony of "two witnesses purported to tie him to the crime." Id. at 40-41. Second, West alludes that his trial counsel was ineffective for failing to request a continuance especially "[i]n light of the testimony that West's trial counsel had never dealt with such an expert witness." Id. at 41. Third, West cites the constrained timeline surrounding when his trial counsel discovered that the State intended to use the letters and Drexler's testimony at trial. He alleges that his trial counsel did not learn until eight days before trial that the State intended "to use the letters as evidence against West," and further claims that his counsel was not informed until the first day of jury selection "that a State `obliterated documents' expert had examined portions of the letters purportedly obliterated by Pearce [i.e., West's co-defendant and former girlfriend] with a black felt-tip pen." Id. Finally, West states that his counsel only "learned during trial that the State's expert witness would testify regarding obliterations." Id.
Respondents answer by raising three arguments. First, Respondents argue that "[a]s an initial matter, this Court should summarily dismiss this claim because it is conclusory in nature and fails to state a valid claim for relief under 28 U.S.C. § 2254." Respondents' Br. (Doc. 11) at 36. Respondents support this assertion by arguing, inter alia, that "West fails, however, to identify an `obliterated documents' expert that would have been available for his trial" and that West "does not allege what assistance that expert would have provided." Id. at 36-37. Second, Respondents assert that "[t]his claim is procedurally defaulted from this Court's
On collateral review, the Alabama Court of Criminal Appeals made the following findings of fact and conclusions of law:
(Rule 32 C.R. Vol. 21, Tab. 73, pp. 17-19 (alterations in original)). And to the extent that Respondents now rely upon the Rule 32 circuit court's findings of fact or incorporates that court's legal analysis as its own, Respondents quote the following passages from the Rule 32 circuit court's final order:
Respondents' Br. (Doc. 11) at 40-41 (quoting Rule 32 C.R. Vol. 21, Tab. 72, pp. 21-24).
In regards to whether West complied with pleading requirements for federal habeas petitions, he again fails to plead sufficient facts to support this aspect of his ineffective assistance claim. At no time in his petition does West state "what an `obliterated documents' expert would have done to aid the preparation of his defense or what testimony he would have presented." Answer (Doc. 10) at 20. Merely claiming that expert assistance would somehow have aided his cause and that his trial counsel was thereby ineffective for not requesting a continuance does not satisfy the heightened pleading requirements for federal habeas cases under section 2254. See, e.g., Mayle, 545 U.S. at 655, 125 S.Ct. 2562 ("[T]he petition must ... `state the facts supporting each ground [for relief].'" (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254)); McFarland, 512 U.S. at 856, 114 S.Ct. 2568.
As stated above, Habeas Rule 2(c) required West to plead facts supporting each ground for relief, yet he has not described how he was prejudiced — an essential element of his ineffective assistance claim — by his trial counsel's purported deficient performance in that he failed to establish how a defense expert would have aided his cause. The absence of a fully-developed argument necessarily leads this Court to conclude that this claim is conclusory and fails to allege a basis for habeas relief. See Blackledge, 431 U.S. at 74, 97 S.Ct. 1621 ("The ... presentation of conclusory allegations unsupported by specifics is subject to summary dismissal"). Even though this aspect of West's ineffective assistance claim is due to be dismissed, the Court will still address the merits of his claim as instructed by the Eleventh Circuit.
The same principles guide the Court's analysis of this ineffective assistance sub-claim as West's two preceding ineffective assistance sub-claims.
As stated repeatedly above, to have effectively raised an ineffective assistance claim before Alabama courts, West's Rule 32 petition "was required to allege specific facts showing that his [trial] counsel's performance was deficient — that counsel's decisions were so unreasonable that they could not be considered as part of the [trial] strategy — and that the deficiency made a difference to the outcome of the proceeding." Jenkins, 210 Fed.Appx. at 899 (citing Strickland, 466 U.S. at 687, 689, 694, 104 S.Ct. 2052). But since this Court is constrained by the dictates of the AEDPA, this review is accordingly limited
Powell, 602 F.3d at 1273 (footnote omitted); see also Harrington, 131 S.Ct. at 788 ("When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.").
In the present case, the Alabama Court of Criminal Appeals found that the allegations in West's Rule 32 petition "fail[ed] to satisfy the pleading requirements set forth in Rule 32.3 and Rule 32.6(b)." (Rule 32 C.R. Vol. 21, Tab. 73, p. 18). In support of this ruling, the court stated:
After a review of West's Rule 32 petition, it is clear that "those allegations [did not] sufficiently state a claim for ineffective assistance of counsel." Powell, 602 F.3d at 1273 (footnote omitted). Rather than "alleg[ing] specific facts showing that his [trial] counsel's performance was deficient... and that the deficiency made a difference to the outcome of the proceeding," Jenkins, 210 Fed.Appx. at 899 (citation omitted), the allegations in West's Rule 32 petition amounted to no more than a bare assertion that his trial counsel performed deficiently by not requesting a continuance in order to procure a obliterated documents expert. (See Rule 32 C.R. Vol. 16, Tab. 40, ¶¶ 56-66).
Even though West's Rule 32 petition emphasized that "the defense's need for such an expert[] cannot be overstated," at no time does the petition take the next logical step and proceed to explain why "the defense's need for such an expert[] cannot be overstated." Id. at ¶ 59. For example, West's Rule 32 petition repeatedly asserted a defense expert could have "assist[ed] the defense in cross-examining the State's `obliterated documents expert'" and "could also have offered testimony to rebut or contradict aspects of Mr. Drexler's testimony." Id. at ¶ 56.
Earlier this year, the Supreme Court faced a related contention that a habeas petitioner's trial counsel "was constitutionally deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response." Harrington, 131 S.Ct. at 790-91. In finding that the petitioner's trial counsel did not perform in a deficient manner, the Court held:
Id. at 791. Here, West makes a contention that is similarly analogous to Newton's third law as he basically claims that he was entitled to a defense expert because an expert was proffered by the prosecution. As such, West's claim likewise fails because he did not "show it was indisputable that Strickland required his attorney to act upon that knowledge." Id. In
West has not shown that the Alabama Court of Criminal Appeals' decision was either contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). West's claim, therefore, is due to be denied.
Alternatively, even if the state collateral court concluded that West satisfied Rule 32's pleading requirements, denial of this ineffective assistance sub-claim would still be proper. Contrary to West's assertion that his counsel was deficient for not seeking a continuance to procure a defense expert to assist in cross-examining the State's obliterated documents expert, see Petition (Doc. 1) at 39-42, the real issue is whether his counsel's decision to attack the authenticity of the letters, as opposed to an attack of the State expert's conclusions, comprised a "sound tactical decision" as the Rule 32 circuit court concluded. (See Rule 32 C.R. Vol. 21, Tab. 72, p. 22).
For a habeas petitioner to sufficiently establish a claim of ineffective assistance, he or she "`must overcome the presumption that, under the circumstances, the challenged action' could be considered trial strategy." Parker, 565 F.3d at 1278 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). As the Supreme Court has often stated: "There is a `strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than `sheer neglect.'" Harrington, 131 S.Ct. at 790 (quoting Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam)). Here, West failed to rebut this presumption, which is evident after a review of the state court record.
Simply put, the record clearly supports the Rule 32 circuit court's conclusion that West's trial counsel made a "sound tactical decision." (See Rule 32 C.R. Vol. 21, Tab. 72, pp. 21-23). In particular, there was a sound factual basis for West's trial counsel's determination to pursue an authentication defense rather than engaging in a so-called "battle of the experts." Under the constraints of a looming trial, West's counsel was unable to find an obliterated documents expert for the defense. But his strategy, if ultimately proven correct, did not require expert testimony. Rather than attacking Drexler's interpretation of the obliterated portions of the letters, West's trial counsel argued that "it is not [his] letters," i.e., that West did not write the letters. (R. Vol. 8, p. 1064). Such a strategy was — and remains — a sound tactical decision because many of the letters did not even bear West's name. In fact, they were signed by one "Henry Hill," who coincidentally is the same name as the lead protagonist from the classic film Goodfellas.
At first blush, it may seem strange that West chose to conceal his penmanship, but it begins to come into focus after considering Amy Pearce's trial testimony. Pearce, West's girlfriend at the time of the offense as well as his co-defendant, stated that she was not allowed to communicate with West and vice versa after both were imprisoned at the Etowah County Detention Center because inmates, much less co-defendants, were prohibited from corresponding with one another. Id. at 1066-67. Because of this, West and Pearce concocted an elaborate strategy whereby a third party outside the jail, usually West's mother, acted
In this light, counsel was not arguing that West did not write letters bearing West's own name and listing his prison cell as the return address. To the contrary, his attorney argued that West did not write letters that were not only signed by "Henry Hill," but also sent by someone outside the jail. See id. at 1067-70. Therefore, West's trial counsel's strategy of calling witnesses to testify that the letters were not in West's handwriting was entirely reasonable, both at the time of trial as well as in hindsight. See Harrington, 131 S.Ct. at 789 ("Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." (citations omitted)).
Further, West's trial attorneys also attempted to impeach Pearce's credibility as a witness for the prosecution. As in many cases where one co-defendant pleads guilty and testifies against the other in exchange for some sort of reduced sentence, West's counsel emphasized the fact that Pearce stood to benefit from cooperating with the prosecution. (See R. Vol. 8, pp. 1158-62). Relatedly, Pearce also testified about the letter's contents and West's handwriting. See id. at 1069-70. And when the preceding is considered in light of the fact that the letters' authenticity was in question, attacking Pearce's credibility further proves that West's trial attorneys pursued a reasonable trial strategy by foregoing "a battle of the experts." See Harrington, 131 S.Ct. at 789-90.
As such, West has failed to rebut the presumption that his trial counsel's decision to attack the authenticity of the letters, instead of requesting a continuance in order to procure expert assistance, was sound trial strategy. See Parker, 565 F.3d at 1278. And after an independent review of the record, this Court "cannot say that `no competent counsel would have taken the action that his counsel did take.'" Williams v. Allen, 598 F.3d at 792 (quoting Haliburton, 342 F.3d at 1243). West is accordingly unable to establish deficient performance under Strickland.
Although West did not sufficiently plead this claim nor that his counsel performed deficiently, the Court will nonetheless address Strickland's prejudice prong. Usually when a habeas petitioner claims his or her trial counsel should have enlisted expert assistance, such claims also include the proposed expert's testimony and assert that it would have bolstered the petitioner's defense had the expert rendered such assistance at trial. See, e.g., Williams v. Allen, 598 F.3d at 794 ("Despite these efforts, [the habeas petitioner] argues that if his counsel had enlisted testimony from a psychopharmacologist, such testimony would have bolstered his voluntary intoxication defense and provided a clearer demonstration of his argument to the jury."). And logically, a court
But West must plead more than a conclusion to establish that he was prejudiced by his counsel's alleged deficient performance. To explain, for West to establish this proposition he would have to prove that: (1) if his counsel had requested a continuance, either it would have been granted by the trial court or the trial court's denial would have necessitated reversal;
In conclusion, West's argument is based on the unfounded assumption that a defense expert would have undeniably refuted the testimony of the State's obliterated documents expert, and in doing so would have resulted in a different outcome at his trial. But such bare allegations are insufficient to establish prejudice under Strickland because West "has not shown a reasonable probability that" if his counsel would have requested a continuance it "would have resulted in a life sentence rather than the death penalty." Williams v. Allen, 598 F.3d at 794-95. Therefore, West's claim is due to be denied.
As part of a jumbled twenty-one page argument, West argues that he was denied — what can generally be described as — his constitutional right to expert assistance.
After viewing West's argument as a whole, the Court concludes that West's overarching assertion contains three somewhat distinct, yet interrelated, sub-claims: (1) Alabama denied West access to the raw materials integral to build an effective defense, a right grounded in the Fourteenth Amendment's guarantee of fundamental fairness, by depriving him a reasonable opportunity to obtain expert assistance in violation of Ake v. Oklahoma; (2) Alabama violated West's Sixth Amendment right to confrontation by denying him expert assistance to aid in the cross-examination of the State's "obliterated documents" expert; and (3) the trial court violated West's Sixth Amendment right to effective cross-examination by allowing "junk science," i.e., unreliable expert testimony, to be admitted into evidence. See id. at 43-64. While West's first and second sub-claims in this regard are, at times, inexorably intertwined, the Court will endeavor to address each sub-claim individually and in turn.
In his "Summary of the Argument," West sums up this sub-claim by contending that "the state courts erred by failing to find that [he] had been denied an opportunity to obtain expert assistance." Petition (Doc. 1) at 26. West's primary argument hinges upon his interpretation of the Supreme Court's opinion in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which he asserts "make[s] clear that fundamental fairness entitles a criminal defendant to an expert on any issue the government has made into a `significant factor' at trial." Petition (Doc. 1) at 43. While this amorphous claim spans various headings within his petition, West's chief claim appears to be that without "the assistance of [an] expert in the cross-examination of the government's expert on the same issue," here, the State's obliterated documents expert Steven Drexler, he was "robbed of `the basic tools of an adequate defense or appeal.'" Id. (quoting Ake, 470 U.S. at 77, 105 S.Ct. 1087). Further, West argues that an indigent defendant's usual burden to prove that he or she is entitled to expert assistance
Respondents respond by raising a number of arguments. First, Respondents contend that "this Court should summarily dismiss this claim because it is conclusory in nature and fails to state a valid claim for
See Respondents' Br. (Doc. 11) at 45 (quoting West v. State, 793 So.2d 870, 879 (Ala. Crim.App.2000) (alterations in original)).
To begin, Respondents are correct to argue that "this Court should summarily dismiss this claim because it is conclusory in nature and fails to state a valid claim for relief under 28 U.S.C. § 2254." Respondents' Br. (Doc. 11) at 44. As discussed in detail in Part I(B)(4) supra, West does not allege whether such an expert would have been available to testify at trial, what testimony or assistance that defense expert would have provided, or, more importantly, how such assistance would have aided his defense at trial. See Petition (Doc. 1) at 43-52. While West provides a conclusory assertion that such an expert could have aided his trial counsels' cross-examination of the State's expert witness, he fails to go into more detail and state who, what, when, and how. Simply put, West does not argue that another interpretation could have been gleaned from the letters or that it was impossible for Drexler's methods to have yielded accurate results, i.e., his testimony was merely a sham. West only provides an implicit assumption that there is a remote possibility that expert assistance could have helped — not that it would have helped, but simply that it may have helped.
Therefore, the allegations in West's habeas petition fail to satisfy the heightened pleading requirements for federal habeas cases under section 2254. See, e.g., Mayle, 545 U.S. at 655, 125 S.Ct. 2562 ("[T]he petition must `specify all the grounds for relief available to the petitioner' and state the facts supporting each ground." (emphasis added) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254)); McFarland, 512 U.S. at 856, 114 S.Ct. 2568. Conclusory and vague claims that fail to state facts showing the petitioner is entitled to habeas relief can be dismissed without further effort on the part of this Court. See Blackledge, 431 U.S. at 74, 97 S.Ct. 1621 ("The ... presentation of conclusory allegations unsupported by specifics is subject to summary dismissal...."). Because West does not plead facts, including, but not limited to, "identify[ing] an `obliterated documents' expert that would have been available for his trial" or "what assistance that expert would have provided," this ground does not warrant habeas relief and is due to be dismissed. Respondents' Br. (Doc. 11) at 44. In spite of this defect, the Court will still address other facets of the sub-claim, i.e., whether it is procedurally defaulted.
Section 2254 requires habeas petitioners to "exhaust[] the remedies available in the courts of the State" before filing a habeas petition in federal court. 28 U.S.C. § 2254(b)(1)(A)(2006). That is, "[t]he federal claim must be fairly presented to the state courts" so that they "have had the first opportunity to hear the claim sought to be vindicated in the federal habeas proceeding." Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir.2007) (citation omitted).
This does not describe the entirety of West's burden, however. For a habeas petitioner to claim that he or she fairly presented a federal claim to state courts:
McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir.2005) (emphasis added) (internal citations omitted). Simply put, "[t]he exhaustion doctrine requires the petitioner to `fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right." Pearson v. Sec'y, Dep't of Corr., 273 Fed.Appx. 847, 849-50 (2008) (per curiam) (citation omitted). And as part of such a showing, the claim presented to the state courts "must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Reedman v. Thomas, 305 Fed.Appx. 544, 545-46 (11th Cir.2008) (per curiam) (citation omitted).
In the case at hand, the Supreme Court's opinion in Ake v. Oklahoma is integral to West's claim, but it only appears once within his brief to the Alabama Court of Criminal Appeals on direct appeal. (See C.R. Vol. 14, Tab. 31, p. 4). West argued:
Id. (parallel citations omitted). Context, however, is invaluable because not only does the assertion espousing Ake appear in the closing paragraph of West's claim, but it also falls under a confusing caption that seems to only address purported violations of Alabama law. Id. at 1, 4. That section's heading states:
Id. at 1.
And while West's brief to the Alabama Court of Criminal Appeals on direct appeal cites "his right to a fair hearing" as well as his "14th amendment right[] under the Constitution of the United States," both references only appear within a recitation of the various rights upon which his trial counsel filed pre-trial discovery motions seeking the production of documents, which "w[ere] premised upon" and made "pursuant to" rights guaranteed by the United States Constitution. See id. at 3.
Finally, it is worth noting that West reiterated this exact claim within his petition for certiorari to the Alabama Court on direct appeal. (See Vol. 15, Tab. 36, pp. 1-4). The importance of this repetition, while slight, is that at no time did West dispute the Alabama Court of Criminal Appeals' characterization of his claim as being solely premised on Alabama law. See id. Thus, the Alabama Court of Criminal Appeals' opinion on this issue accurately summarizes the essence of West's
Therefore, West's claim is analogous to the claim dismissed by the Eleventh Circuit in McNair as it: (1) falls under a caption that is labeled in a confusing manner;
To be clear, this Court must discern whether West "presented his claims to the state court such that a reasonable reader would understand each claim's particular legal basis (4)27" Id. at 1302 (citation omitted). That is, the present issue is whether a "reasonable reader would understand" that the claim West presented to the Alabama courts on direct appeal is the "same claim he [now] urges upon the federal courts." Id. If not, West failed to "`fairly present' his federal claims to the state courts," and his present claims are unexhausted for purposes of federal habeas review. Pearson, 273 Fed.Appx. at 849-50 (citation omitted).
As stated above, West argues before this Court that the principles articulated by Supreme Court in "Ake v. Oklahoma... make[s] clear that fundamental fairness entitles a criminal defendant to an expert on any issue the government has made into a `significant factor' at trial." Petition (Doc. 1) at 43. And without "the assistance of [an] expert in the cross-examination of the government's expert on the same issue," West was "robbed of the `basic tools of an adequate defense or appeal.'" Id. (quoting Ake, 470 U.S. at 77, 105 S.Ct. 1087). When the preceding is compared to the claims West raised on direct appeal, it is clear that West did not "present [Alabama] courts with the same claim he [now] urges upon the federal courts." McNair, 416 F.3d at 1302 (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509). Even though West cited Ake and the United States Constitution, the federal constitutional dimension of this claim was not made clear to the Alabama appellate courts.
Further, a habeas petitioner can evade this exhaustion requirement if he or she shows "cause for and actual prejudice resulting from the default or by establishing a fundamental miscarriage of justice." McNair, 416 F.3d at 1304 n. 9 (citation omitted). Here, however, West not only fails to argue that the preceding exceptions are applicable to his claim, but also would be unable to establish that either of these exceptions vitiate his present procedural default "as there is no conceivable excusable cause for his failure to raise [this] claim in state court and no fundamental miscarriage of justice will result from its default." Id. Therefore, this sub-claim is accordingly due to be dismissed.
West summarizes this sub-claim by asserting that "the state courts erred by failing to find that [he] had been denied... his right to effective cross-examination." Petition (Doc. 1) at 26. Such an oversimplification, however, does not account for the many nuances in West's argument.
As a general proposition, West broadly asserts that the Sixth Amendment's "Confrontation Clause guarantees `an opportunity for effective cross-examination.'" Id. at 56 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)); see also id. at 54 ("The Sixth Amendment guaranteed West the right to confront and cross-examine the adverse witnesses in his case."). But Alabama deprived him of this right, West argues, when the trial court denied him "the assistance he needed to question the prosecution's theory, much less show that it was baseless." Id. at 56-57; see also id. at 54-55 ("[T]he trial court made it impossible for him to obtain an expert to counter the prosecution's expert." (emphasis omitted)).
West further elaborates that:
Id. at 58-59 (internal citation omitted). And the consequences of the trial court's denial, West claims, were disastrous.
Id. at 59. To conclude, West argues that the imbalance evidenced by the disparity between the length of his trial counsel's cross-examination and the State's direct examination of Drexler "frustrates the Confrontation Clause's central concern: ensuring the reliability of the evidence by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Id. at 58 (citing Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)).
Respondents raise a two principal arguments to rebut West's claim. First, Respondents argue that "this Court should summarily dismiss this claim because it is conclusory in nature and fails to state a valid claim for relief under 28 U.S.C. § 2254." Respondents' Br. (Doc. 11) at 47. Respondents specifically contend that "West fails ... to identify an `obliterated documents' expert that would have been available for his trial" and that West "does not allege what assistance that expert would have provided." Id. Second, Respondents assert that "[t]his claim is unexhausted and defaulted because it never was raised in state court on appeal from West's conviction and death sentence." Answer (Doc. 10) at 25. In particular, Respondents contend that "[a]lthough this claim was raised on direct appeal in West's petition for certiorari to the United States Supreme Court, including a claim in a petition for discretionary review is alone insufficient for exhaustion purposes," and further "dismissal to allow West to exhaust this claim would be futile because he is now barred from raising this claim in state court." Id. (citations omitted).
For the same reasons discussed previously in Part II(A)(1) supra, West's claim that he was "denied ... his right to effective cross-examination," Petition (Doc. 1) at 26, "is conclusory in nature and fails to state a valid claim for relief under 28 U.S.C. § 2254," Respondents' Br. (Doc. 11) at 47. Respondents are correct to argue that the same shortcomings which plagued West's previous subclaim likewise bars his present sub-claim; namely, West "fails ... to identify an `obliterated documents' expert that would have been available for trial" and "does not allege what assistance that expert would have provided." Respondents' Br. (Doc. 11) at 47. In sum, West's petition fails to "state the facts supporting each ground" for relief and, accordingly, is due to be dismissed. Mayle, 545 U.S. at 655, 125 S.Ct. 2562 (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254).
As a perquisite to federal habeas review, a petitioner "must exhaust state court remedies, either on direct appeal or in a state post-conviction motion." Reedman, 305 Fed.Appx. at 545 (citing § 2254(b), (c)).
Id. at 545-46 (alterations, citations, and internal quotation marks omitted). Stated differently, a federal habeas court must "ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies...." Woodford, 548 U.S. at 92, 126 S.Ct. 2378 (emphasis in original) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)).
Here, Respondents concede that West raised this claim in his petition for certiorari to the United States Supreme Court on direct appeal but argue that this alone is insufficient for purposes of exhaustion. See Answer (Doc. 10) at 25. In this respect, Respondents are correct. The Supreme Court has held that the exhaustion requirement is not met "where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless `there are special and important reasons therefor[.]' Raising the claim in such a fashion does not ... constitute `fair presentation.'" Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (citations omitted). This principle still holds true today, as the Eleventh Circuit recently explained: "the Supreme Court in Castille explicitly rejected the argument that `the submission of a new claim to a State's highest court on discretionary review constitutes a fair presentation.'" Mauk v. Lanier, 484 F.3d 1352, 1357-58 (11th Cir.2007) (quoting Castille, 489 U.S. at 351, 109 S.Ct. 1056). And if submitting a new claim to a state's supreme court on discretionary review does not constitute fair presentation of a claim to state courts, then, a fortiori, neither does presentment of a new claim to the United States Supreme Court within a petition for writ of certiorari. Cf. id.
In other words, the Supreme Court has held that a habeas petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" before he or she will "be deemed to have exhausted the remedies available in the courts of the State." O'Sullivan, 526 U.S. at 844-45, 119 S.Ct. 1728 (quoting 28 U.S.C. § 2254(c)); cf. Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ("[O]ur interpretation of § 2254(b), (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court."). As such, any claim West raised within his petition for certiorari to the United States Supreme Court will not save him from having not raised this issue before Alabama courts. The only relevant inquiry, therefore, is whether this issue was raised within the briefs West filed in conjunction with his state court proceedings; either on direct appeal or during Rule 32 proceedings.
The only citations to the Confrontation Clause of the Sixth Amendment within West's brief to the Alabama Court of Criminal Appeals on direct appeal appear in the same section as those to Ake v. Oklahoma and the Fourteenth Amendment above. (See C.R. Vol. 14, Tab. 31, p.3). Compared to the preceding claim, however, if West's references to Ake v. Oklahoma and its corresponding constitutional rights were tenuous, then any reference to the Confrontation Clause is nearly non-existent. That is, West's previous claim benefitted from citations to both the Constitution and the Supreme Court's
In his brief to the Alabama Court of Criminal Appeals on direct appeal, which mirrors his petition for certiorari to the Alabama Supreme Court, West mentions "his right to confrontation" as well as his "6th ... amendment right[] under the Constitution of the United States." Id.; (see also C.R. Vol. 15, Tab. 36, p. 3). These references, however, appear in the same explanation of the rights upon which West's trial counsel filed pre-trial discovery motions seeking the production of documents, which "w[ere] premised upon" and made "pursuant to" rights guaranteed by the United States Constitution. (C.R. Vol. 14, Tab. 31, p. 3). As such, they are more akin to a discussion of the procedural history in West's case than to any resemblance of an argument.
Only one sentence in West's brief to the Alabama Court of Criminal Appeals on direct appeal is remotely similar to the claim he now raises in the federal habeas petition. It states:
Id. at 4 (emphasis added). But even this assertion does not claim that the trial court violated his right to confrontation by denying him a reasonable opportunity to obtain expert assistance to aid in the cross-examination of the State's obliterated documents expert. To be sure, the caption of this section as well as the substantive allegations contained therein both establish that West's argument before the Alabama courts on direct appeal did not invoke the guarantees of the Confrontation Clause, but instead that "[t]he Trial Court should have either excluded the letters, or granted a continuance to allow the defense a fair opportunity to respond to them." Id. Because West did not fairly present this issue during state court proceedings, this claim is unexhausted and due to be dismissed.
In this sub-claim, West expounds upon his counsel's objection at trial where he argued that the speciality of obliterated documents is neither recognized as a profession nor recognized by Alabama as a proper mode of authentication. See Petition (Doc. 1) at 62-63 (quoting R. Vol. 9, p. 1192). West begins by asserting that Judge Cardwell "failed in his role as gate keeper." Id. at 61. He argues that Judge Cardwell "had a special obligation to ensure that scientific testimony was not only relevant, but also reliable," yet he violated this duty by permitting the State's obliterated documents expert to testify in the absence of a defense expert to assist West's trial counsel during the State expert's cross-examination. Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Finally, West argues that Alabama does not have any "licensing requirements, procedural safeguards or regulations," nor even recognizes "`document obliteration' [as a] profession," and thus the prosecution failed to prove that Drexler's testimony was either sufficiently reliable or "had been `sufficiently established to have gained general acceptance' in any recognized field of expertise." Id. at 61-63;
In reply, Respondents raise two arguments. First, Respondents assert that "[t]his claim is procedurally defaulted because it raises a pure question of state law." Respondents' Br. (Doc. 11) at 49. Second, Respondents assert that "the merits of this claim were addressed by the Alabama Court of Criminal Appeals on direct appeal," Answer (Doc. 10) at 27 (citing Rule 32 C.R. Vol. 21, Tab. 65, pp. 879-81).
At bottom, this aspect of West's denial of expert assistance sub-claim is not a cognizable claim for purposes of federal habeas review because it does not allege that "that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir.2010). The Supreme Court has made it exceedingly clear by "stat[ing] many times that `federal habeas corpus relief does not lie for errors of state law'" and "reemphasiz [ing] that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (emphasis added) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)). A mandate the Supreme Court reiterated just this term. Wilson v. Corcoran, ___ U.S. ___, 131 S.Ct. 13, 14, 178 L.Ed.2d 276 (2010) (per curiam) ("Federal courts may not issue writs of habeas corpus to state prisoners whose confinement does not violate federal law."). In other words, section 2254(a) "command[s] ... that habeas relief may be afforded to a state prisoner `only on the ground' that his custody violates federal law." Id. at 17 (emphasis added).
Here, West does not argue that Alabama is prohibited from using testimony from experts such as Drexler. To the contrary, the implicit assumption underlying West's claim is that it is an unwise public policy for Alabama to do so. And while he attempts to clothe his arguments as claims arising under the Confrontation Clause of the Sixth Amendment, he primarily cites law review articles along with a few cases interpreting the Federal Rules of Evidence. See Petition (Doc. 1) at 60-62 (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999);
Alternatively, for the reasons already set out in this opinion, all of the preceding claims are procedurally defaulted for lack of merit. This claim is due to be dismissed, or, in the alternative, denied.
For all of the reasons set forth herein, West's petition for writ of habeas corpus is due to be
In accordance with the Memorandum Opinion entered contemporaneously herewith and Rule 58, Fed.R.Civ.P., it is
The Petition is
On remand to correct deficiencies in the original sentencing order, the trial court's Amended Sentencing Order listed two aggravating circumstances in addition to the two listed above: "(6) The capital offense was committed for pecuniary gain (4)27"; and "(8) That the capital offense was atrocious and cruel compared to other capital offenses...." (C.R. Vol. 21, Tab. 63, pp. 28-29). These aggravating factors, however, were redacted when the trial court entered its Further Amended Sentencing Order, which is quoted in detail above. (C.R. Vol. 21, Tab. 64, pp. 1-2). Moreover, both the trial court's Amended Sentencing Order and Further Amended Sentencing Order listed "that the Defendant had no significant history of prior criminal activity" as a statutory mitigating factor. (C.R. Vol. 21, Tab 63, p. 29; C.R. Vol. 21, Tab. 64, p. 2). Yet this factor was not included within the trial court's initial sentencing order and was only added after the Alabama Court of Criminal Appeals "remanded the case to the trial court with instructions that the trial court enter a new sentencing order that complies with the requirements of § 13A-5-47(d)...." West v. State, 793 So.2d at 887; (see C.R. Vol. 21, Tab. 62, pp. 188-90).
(Rule 32 C.R. Vol. 17, pp. 67-68). West did "not pursue th[ese] claims on appeal" to the Alabama Court of Criminal Appeals; "therefore, they [were] deemed to be waived" by that court. (Rule 32 C.R. Vol. 21, Tab. 73, pp. 5-6). In this Court, West neither attacks the sufficiency of the Rule 32 circuit court's summary dismissal of these claims nor raises these issues in his present Petition for Writ of Habeas Corpus. Because West does not currently pursue these claims, they are abandoned. See Whisenhant v. Allen, 556 F.3d 1198, 1202-03 (11th Cir.2009) ("Because [the petitioner] does not raise these claims in his brief to us, these claims are abandoned." (citation omitted)).
Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (internal citations omitted).
Id. (emphasis added); see also Hammond v. Hall, 586 F.3d 1289, 1330-32 (11th Cir.2009) ("The Georgia courts, considered collectively, gave two consistent reasons for deciding against this claim. Each reason is due deference.").
As stated above, West's Rule 32 Petition met the pleading requirements of Alabama law because he alleged facts which, if true, entitle him to relief. But even if this Court finds that his ineffectiveness claims did not completely satisfy Rules 32.3 and 32.6(b), there is no question that, at a minimum, he substantially satisfied the purpose of the rule. This renders the state court rejection of his ineffectiveness claims invalid as a basis for precluding federal review of it....
Id. (citations omitted).
Johnson v. Singletary, 938 F.2d 1166, 1175 (11th Cir.1991) (en banc) (citations and internal quotation marks omitted).
Durham, 287 F.3d at 1303, 1304-05 (emphasis added).
(Rule 32 R. Vol. 17, Tab. 49, p. 29).
See, e.g., Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir.2001).
Irrespective of the manner in which Respondents invoke the Rule 32 circuit court's ruling, this Court need not resolve this issue. As discussed in detail below, the Alabama Court of Criminal Appeals' dismissal of this portion of West's ineffective assistance claim is treated as a holding on the merits for purposes of federal habeas review. See infra Part I(B)(2)(b). And since the Rule 32 circuit court and the Alabama Court of Criminal Appeals both dismissed this claim on the merits, "[e]ach reason is due deference" under the AEDPA because these "courts, considered collectively, gave two consistent reasons for deciding against this claim." Hammond, 586 F.3d at 1331 (11th Cir.2009); see also Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d at 752.
(Rule 32 C.R. Vol. 16, Tab. 40, ¶ 72). In regards to the preceding, the court ultimately found that West "failed to present any evidence at the evidentiary hearing to prove these allegations." (Rule 32 C.R. Vol. 21, Tab. 73, p. 15). As such, the court held that denial of this portion of West's claim was proper "[b]ecause a Rule 32 petitioner bears the burden of both pleading and proof, and because West failed to offer any proof to support these sufficiently-pleaded allegations." Id. West, however, does not include these "sufficiently-pleaded" allegations within his present habeas petition to this Court. See Petition (Doc. 1) at 33-38. Therefore, West is deemed to have abandoned these claims. See Whisenhant v. Allen, 556 F.3d 1198, 1202-03 (11th Cir.2009) ("Because [the petitioner] does not raise these claims in his brief to us, these claims are abandoned." (citation omitted)).
Second, in regards to counsel's alleged failure to present a mitigation defense at the penalty phase, "there is no absolute duty to introduce mitigating evidence at all." See Marquard, 429 F.3d at 1305 (emphasis added) (citing Chandler, 218 F.3d at 1319). And this goes without saying that West failed to produce, nearly a decade after he was initially convicted, even one document or witness that his counsel should have presented in furtherance of a mitigation defense. Cf. Harvey, 629 F.3d at 1244 ("[The petitioner] argues that, because the record shows no evidence of consent, we must presume that he never consented. This argument turns the Strickland burden of proof on its head. It is the petitioner's burden to introduce evidence proving trial counsel's deficiency." (citation omitted)).
Seen in this tight, the allegations in both West's Rule 32 petition and his present habeas petition do not overcome the "evidentiary presumption that [his] counsel acted properly." Id. at 1245; see also Williams v. Head, 185 F.3d 1223, 1227-28 (11th Cir.1999) ("Following the Supreme Court's instructions, we will `indulge a strong presumption that [counsel's] conduct falls within the wide range of reasonable professional assistance,' and that he `made all significant decisions in the exercise of reasonable professional judgment.'" (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052)).
Despite the preceding summary, West's petition repeatedly swaps back and forth between arguing aspects of each sub-claim; thus, it is difficult to address one sub-claim without discussing facets of another. The Court has attempted to untangle and mend together the separate sub-claims West raises within the two disparate versions of Section II. In conclusion, the Court believes it best to treat the two sections as raising one overarching claim with three interrelated sub-claims.
Petition (Doc. 1) at 48-49 (second alteration in original (i.e., "[there was]")).
(C.R. Vol. 14, Tab. 31, pp. 2-3 (emphasis added)). The second citation to the United States Constitution appears on the same page and states:
Id. at 3 (emphasis added).
